Douglas v. Gonzales et al Doc.

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Case 8:06-cv-00890-JSM-TGW Document 9 Filed 05/25/2006 Page 1 of 7

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION

ROHAN DELANO DOUGLAS,

Petitioner,

v. CASE No. 8:06-CV-890-T-30TGW

ALBERTO GONZALEZ, etc., et al.,

Respondents.

REPORT AND RECOMMENDATION

In his Petition for Emergency Intervention in Deportation

Proceedings (Doc. 3) and Petition for Injunction Granting Expedited/

Immediate Release (Conditionally) from Mandatory Detention and

Enlargement of Time to Prepare Defense in Deportation Proceedings (Doc. 4),

the petitioner, Rohan Delano Douglas, challenges his continued detention by

the Department of Homeland Security during the pendency of his removal

proceeding that was initiated as a result of his convictions for engaging in two

criminal acts involving moral turpitude. He argues that his mandatory

detention is unconstitutional and that his detention prevents him from

preparing an adequate defense to his removal (Docs. 3, 4). These petitions

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have been referred to me for a report and recommendation (Doc. 8). Because

the court lacks jurisdiction to review the detention Order, the petitions should

be dismissed, and the case closed.

The petitioner is a native and citizen of St. Kitts in the British

Virgin Islands (Doc. 5-2, Ex. B, p. 12). He was admitted into the United

States in 1977 (id.). On February 5, 1987, the petitioner was convicted of

larceny of a vehicle and, on August 5, 1996, he was convicted of grand theft

(id.).1 On November 30, 2005, removal proceedings were initiated against

him (id. at pp. 9-10, 12, 13-14). The Notice of Removal charges the petitioner

with being deportable from the United States based on convictions for these

crimes which involve moral turpitude and do not arise out of a single scheme

of criminal conduct (id. at p. 12).

Pending his removal proceedings, the petitioner is being detained

by the Department of Homeland Security, Bureau of Immigration and

Customs Enforcement (“BICE”) at the Manatee County Detention Facility.2

1
According to a record of deportability, the petitioner has engaged in other criminal
acts and his criminal record has been characterized as “lengthy” (Doc. 5-2, Ex. B, p. 13).
2
The status of the removal proceedings is unclear. The petitioner mentions that a
Master Hearing was scheduled for May 17, 2006 (see Doc. 3, p. 2).

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After he was ordered detained (Doc. 5-2, Ex. B, p. 11), the petitioner was

afforded a detention hearing before an Immigration Judge on March 1, and 2,

2006 (Doc. 5, p. 2, ¶2, pp. 6-7).3 His request for release was denied (id. at p.

2). The petitioner has appealed this decision to the Board of Immigration

Appeals (“BIA”) (Doc. 5-2, Ex. A), and that appeal is pending (Doc. 3, p. 2).

On May 11, 2006, the petitioner submitted these petitions for emergency

intervention and a preliminary injunction (Docs. 3, 4), asking this court to

also review his detention pending removal proceedings.4

The petitioner, however, has not exhausted his administrative

remedies on his request for release from custody because his appeal before the

3
In this connection, the governing regulations provide that, after an alien is taken
into custody and mandatory detention is ordered, a hearing is provided if the alien claims
he is not properly included within 8 U.S.C. 1226(c), the statute pursuant to which he is
detained. Demore v. Kim, 538 U.S. 510, 514 (2003); 8 C.F.R. 236.1(d)(1), 1236.1(d)(1).
At that hearing, the detainee may avoid mandatory detention by demonstrating that he is
not an alien, was not convicted of the predicate crimes, or that the BICE is otherwise
substantially unlikely to establish that he is in fact subject to mandatory detention. Demore
v. Kim, supra, 538 U.S. at 514, n. 3.
It appears that the petitioner received such a hearing on March 1, and 2, 2006.
Accordingly, he had an opportunity to present to the Immigration Judge his (erroneous)
argument that he is not properly included within §1226(c) because one of the convictions
underlying the removal occurred prior to October 1998 (Doc. 5, p. 4, ¶I), and inform the
Immigration Judge of his present attempt to overturn the other criminal conviction
underlying the removal proceeding (see Doc. 7, p. 2).
4
Notably, United States Magistrate Judge Mark A. Pizzo denied the petitioner’s
request to proceed in forma pauperis (Doc. 2). Nevertheless, the Clerk’s Office has filed
the petitions even though the filing fee apparently has not been paid.

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BIA on that issue is still pending (see Doc. 3, p. 2). In this connection, it is

noted that the petitioner’s appeal to the BIA is authorized by the governing

regulations. See 8 C.F.R. 236.1(d)(3); 1236.1(d)(3) (an alien may appeal to

the BIA an Immigration Judge’s custody and bond determination). Further, his

appeal contains virtually the same arguments made to this court (compare

Doc. 5-2, Ex. A with Doc. 5). Therefore, the petitioner should be required to

exhaust this administrative remedy prior to seeking relief with this court. See

McCarthy v. Madigan, 503 U.S. 140, 144-45 (1992) (“the general rule [is] that

parties exhaust prescribed administrative remedies before seeking relief from

the federal courts”).

In any event, this court does not have jurisdiction to review the

detention determination. Thus, although the petitioner has not provided the

Immigration Judge’s detention order, it is apparent that the petitioner’s

custodial status is governed by 8 U.S.C. 1226(c). That statute requires the

Attorney General to take into custody and detain aliens with certain

enumerated criminal convictions pending removal proceedings. Included in

this list is any alien who, like the plaintiff, commits an offense covered in 8

U.S.C. 1227(a)(2)(A)(ii), namely, an alien who is convicted of two or more

crimes involving moral turpitude not arising out of a single scheme of

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criminal conduct. 8 U.S.C. 1226(c)(1)(B). Thus, under this statute, the

petitioner is clearly not entitled to release from detention. Furthermore, the

decision to detain the petitioner is not subject to review. 8 U.S.C. 1226(e).

Specifically, §1226(e) provides:

The Attorney General’s discretionary judgment

regarding the application of this section shall not be
subject to review. No court may set aside any
action or decision by the Attorney General under
this section regarding the detention or release of
any alien or the grant, revocation, or denial of bond
or parole.

In sum, based on the plain language of the governing statute, this court lacks

jurisdiction to review this detention decision.

Moreover, the petitioner’s claim that §1226(c)’s mandatory

detention violates his right to due process under the Fifth Amendment (Doc.

4, p. 2) has been rejected by the Supreme Court in Demore v. Kim, supra, 538

U.S. 510. Thus, in Demore the Supreme Court held that “[d]etention during

removal proceedings is a constitutionally permissible ... process” that does not

require an individualized determination of the risk the alien poses of flight or

the danger he might pose to the community. Id. at 524-28, 531. In this

connection, the Court stated that §1226(c)’s mandatory detention provision

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furthers the government’s legitimate purpose of preventing aliens from fleeing

before the removal proceedings are completed. Id. at 528; see also id. at 513.

Furthermore, in this case, the petitioner was afforded an

opportunity to show that he should not be detained under §1226(c). As

indicated, he is presently appealing to the BIA the adverse decision at that

hearing.

For the foregoing reasons, I recommend that the Petition for

Emergency Intervention in Deportation Proceedings (Doc. 3) and the Petition

for Injunction Granting Expedited/Immediate Release (Conditionally) from

Mandatory Detention and Enlargement of Time to Prepare Defense in

Deportation Proceedings (Doc. 4) be dismissed, and this case closed.

Respectfully submitted,

DATED: MAY 25, 2006

NOTICE TO PARTIES

Failure to file written objections to the proposed findings and

recommendations contained in this report within ten days from the date of its

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service shall bar an aggrieved party from attacking the factual findings on
appeal. 28 U.S.C. 636(b)(1).

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